from the firing-off dept

For whatever reason, we've seen all kinds of trademark actions over logos that are claimed to be very similar, but which aren't. Most often these disputes center on the use of a single identifying thing within the logo, such as the umbrella in the Travelers Insurance logo, or the apple in the logo of, well, Apple. These disputes take trademark law, chiefly designed to aid the public in discerning between brands, and reduce it to slap-fights over the attempted ownership of images of everyday items.

But in the trademark spat between two Brazillian restaurants, Fogo De Chao and Espirito Do Sul, we see this sort of thing sink to a new low as the former is threatening to sue the latter over the use of fire in its logo. Yes, fire. You know, one of the first things early mankind was able to manipulate in order to start down the road of societal progress.

In January, Fogo de Chão's attorney sent a letter threatening legal action if Ludwig doesn't cease and desist from use of a "confusingly similar" trademark. The letter said Espirito's logo it uses a similar font, red flames, and description with the word Churrascaria in all capital letters and underscored followed by the words Brazilian Steakhouse.

The Dallas-based chain also accused Ludwig of using similar decor to mimic its restaurant's trade dress, a similar table presentation, the same side dishes, copying its Market Table salad bar and displaying murals depicting Brazil in a manner to mimic the ambiance of Fogo restaurants.

Okay, let's dispense with the items other than the logo so we can get back to the, ahem, meat of this matter. Similar table presentations and dishes would be expected, as these are both Brazillian restaurants. Including a salad bar is hardly trademark infringement, either. Nor is including images of Brazil within the restaurant because, again, Brazillian restaurant. The post also notes that Fogo is claiming that Ludwig developed his Espirito brand and registered its domain while still employed by Fogo and that he had signed an agreement as an employee that any intellectual property developed while employed belonged to Fogo. That's the kind of claim that sounds good, but would be difficult to both enforce and prove in court.

So, back to the logos. Here they are.

Similar? I don't know, maybe? The placement of the text and images is quite similar, sure, except those images are very different (save the existence of fire) and the largest text is the dedicated to the different names of each restaurant. Were one to try to make sure people knew these establishments were different, the best way to do so would be to put the names of each in the largest text, which is exactly what Espirito did. And that logo for Fogo above, by the way, is absolutely the most similar one I could find. Turns out the restaurant has a lot of logos, most of which are completely dissimilar to Espirito's. Companies are certainly allowed to have many logos for the same brand, but it sort of turns down the temperature on just how important a specific logo is if they do, doesn't it?

Turns out that Ludwig has decided he has a good shot at this in court and has decided to go on the offensive.

Fogo threatened to sue Ludwig if he didn't comply with their demands. However, Ludwig preempted the threat, filing his own lawsuit seeking a declaratory judgment that his company's trademark is not similar and the restaurant hasn't infringed on any trademark or trade dress rights owned by Fogo.

"The only similarity between the Spit Roast Mark and the Tent and Coffee Pot Mark is the fire contained in both marks," the Ludwig suit stated. "Fogo is not the exclusive owner of the use of fire in a logo for a restaurant. Fogo does not own the rights to the trade dress it claims. Fogo's alleged trade dress is not distinctive and is functional."

It's hard to argue with him, I think. One cannot trademark the concept of a Brazillian restaurant, after all. Nor can one trademark the commonplace imagery within such a restaurant. This is going to come down to whether the public is confused by the logos and I'm just not seeing it.

from the insanity-in-the-making dept

As you may have heard last week, a British Airways plane caught fire as it was taxiing on the runway preparing for takeoff. Thankfully, everyone on board escaped with just a few minors scratches and bruises. The plane wasn't so lucky. However, there were lots of other people around on other flights witnessing the whole thing and -- not surprisingly -- many of them have Twitter accounts. And, as has become fairly standard when visual news breaks somewhere with people around, they started tweeting photos. Here's David L. Somers at 4:16pm:

Now, some of us might marvel at this amazing world we now live in, where everyone can be a broadcast reporter should news suddenly happen around them. It's kind of amazing. But, perhaps even more fascinating is the somewhat insane mainstream media scrum that immediately follows. All three of these guys were almost immediately bombarded with news producers from TV, newspaper and online media, all asking for permission to use their photos. This is just a sampling because if I posted them all, i think my hand would cramp up from cutting and pasting so many embed codes. Notice that a bunch of the requests come from the very same news organizations, many asking if they can use it on all platforms/affiliates and such:

What's kind of amazing is that all three guys basically sat around after all this graciously giving permission to most of the requests over and over and over and over and over again. Some of the requests were more detailed. Some asked the tweeters to get in contact to sign something. The most forward one was the AP who actually sent a "social media release form" as an attached image to a tweet:

So what to make of all this? On the one hand, it seems like a fairly strong graphical representation of permission culture these days. In nearly every one of these cases, the news organizations in question would likely have extremely strong fair use protections. And it doesn't look like any of the three guys above were looking to profit from their photos. To some extent, having taken and posted the photo may have actually been more of a nuisance for them, since they all then had to spend time responding to all those requests. As filmmaker Nina Paley has discussed in the past, permission culture gets super annoying when everyone has to keep asking, and you just want them to be free to use it. But, of course, in an age where every news organization is afraid to get hit with a massive damages award in a copyright lawsuit, they're all going to ask.

That system seems fairly broken. We have at least some solutions for this. Creative Commons can handle some of it, but Twitter has no way to officially designate a CC license on a photo you've posted. That would certainly help a lot. But, overall, the whole thing just seems silly. These photos are news -- and they're initially being posted on public social media for a reason -- because those who took them wanted them to be shared and spread. It seems silly that we need such an insane level of permission gating that every news agency on the planet has to bother these guys to ask for permission.

from the I-HEART-FREE-SPEECH-EXCEPT... dept

Pity the poor lawyer who has to argue on behalf of his employer's desire to curtail the public's free speech rights. Not only are you indirectly arguing on behalf of those who've abused the legal system to stifle speech, but your defensive arsenal is going to be limited to assertions that are ineffectual, blunted, stupid or any combination of the above.

Free speech in the US is (mostly) an absolute. There are very few areas that aren't covered by this Constitutional protection. Defamation is one of those areas. But defamation isn't what so many people apparently believe it is -- i.e., unpleasant things being said about/to them. Many nasty things can be said without rising to the level of defamation, but that's rarely considered before lawsuits get filed. Anti-SLAPP laws -- instituted by far too few states -- ensure that aggrieved parties double-check their allegations before filing a defamation suit.

Nevada has a perfectly fine anti-SLAPP law, but aggrieved parties who'd rather exercise their perceived "right" to use bogus lawsuits as speech suppression devices are looking to carve out everything about the statute that makes it a deterrent. The person chosen to sell this dismantling of legal protections is Mitchell Langberg, outside counsel for Wynn Resorts (and self-proclaimed "expert" on anti-SLAPP laws). Steve Wynn, the company's owner, recently lost a defamation lawsuit in California, thanks to its anti-SLAPP law. Now, he wants the law changed on his home turf. Langberg appeared (by phone) on Nevada Public Radio to argue on behalf of his employer -- as well as on behalf of the Roca Labs and Thomas Cooleys of the nation. When you're sticking up for plaintiffs like these, what do you say? What can you say?

According to Langberg, the existing law is too broad and offers too much protection to the public. He wants to remove the "clear and convincing evidence" stipulation and replace it with a much lower bar of "some evidence." (He refers to a "70-75% convincing" evidentiary standard, which I don't even know what that means…) He also claims the statute is "intimidating" to businesses, especially the small ones, who feel they must just deal with criticism -- even false criticism -- because they have no way of proving the statements made are false, at least not to the extent that the law demands.

The unspoken summation of these points is this: if potential plaintiffs are finding it hard to prove defamation, chances are it doesn't rise to the level of defamation.

But it gets worse from there. By four minutes into his call, Langberg has referred to Yelp as being a "mechanism" that allows for "online terrorism and character assassination." A few minutes after that and he's reduced to regurgitating anti-speech cliches.

First, there's the qualified support of free speech, which always starts with the person arguing for limiting speech giving his or her First Amendment version of the "some of my best friends are black" argument. ("I'm not racist…")

I support the First Amendment right to free speech. I'm a strong supporter of it. I have represented newspapers in my career against defamation complaints.

I'm also a strong supporter of people's rights to protect their reputation, which is also a First Amendment right -- the right to petition the government when you've been harmed -- by filing lawsuits.

So far, it's mostly acceptable, although it seems clear Langberg is far more concerned with upholding the rights of the latter group, which apparently values "petitioning" over exercising their right to counter critical speech with speech of their own.

Then the love for the First Amendment starts slipping.

There is no First Amendment right to say false things.

Sometimes true, but context matters (satire, etc.). And statements of opinion are often misconstrued by litigants as false statements.

And then, Langberg destroys his own reputation as an expert on anything speech-related.

And, continuing his way to the bottom of the rhetorical reef, chained to the mast of his swiftly-sinking arguments, Langberg then asserts that the right to free speech isn't actually a right.

The First Amendment right is a privilege and a responsibility.

Now that it's simultaneously a right and a privilege, all sorts of crazy things can be asserted.

There are certain limitations. You can't say anything you want, any time you want.

Agreed, but how can anyone not agree with such a robust strawman!

People's reputations are very, very valuable.

Certainly.

So there has to be a balance between people's right to speak freely and their necessary responsibility when they abuse that right.

What? There is a right to speak freely. Those who disagree hold the same right. You can't really "abuse" the right. You either stay within its bounds or you find yourself outside of its protections. Defamation is outside of that boundary. The law Langberg is arguing against does nothing to prevent the pursuit of defamation suits. But Langberg wants a law that allows him and his clients to hold people "responsible" for protected speech. That's why listeners are being subjected to this list of nonexistent exceptions to the First Amendment. Langberg needs the public to believe hurtful, mean statements of opinion are actually unprotected by the Constitution.

When they make false statements of fact, that's an abuse of that right.

No. It isn't. It's something not covered by the First Amendment. It isn't an "abuse" of that right. Someone who steals a gun from someone's house isn't "abusing" his Second Amendment right to keep and bear arms. He's a thief, not someone who acted irresponsibly within the confines of that right. Langberg is trying to paint protected and unprotected speech the same shade of gray.

On top of that, Langberg keeps steering the conversation away from who he's actually arguing for -- Wynn Resorts, a large corporation with a litigious background. He claims it's small businesses that will be hurt the most by the loss of the option to file bogus lawsuits. He continually asserts that the gutted, stripped law will also effectively deter frivolous lawsuits.

But his arguments against the existing anti-SLAPP lawsuit are contradictory. He says the stringent evidentiary standards will result in possibly legitimate cases being tossed out on "day one," with the plaintiffs being saddled with the defendant's legal fees -- something that could put these supposed "small businesses" out of business. Really? If suits can be tossed "before discovery, before a jury trial," as Langberg describes it, then there certainly can't be much in legal fees amassed by the point the court tosses the case.

Beyond that, Langberg overstates the law's current demands in terms of the level of proof needed to follow through on a defamation suit. Langberg portrays it as an almost-insurmountable obstacle of "clear and convincing evidence." As Marc Randazza points out later, the current statute demands no such thing.

Our current statute just requires the plaintiff to prove a "probability of prevailing." Not "most likely." A "probability."

If you can't get over that and you're a licensed attorney, why are you putting your signature on that complaint?

Good question. Langberg would apparently like to be applying his signature to more complaints, but state law sets the bar too high. Langberg isn't quite the First Amendment fan he portrays himself as. He's a fan of his version of the First Amendment. Unfortunately for him, the state's current anti-SLAPP law won't allow him to fully exercise his interpretation of other people's rights.

from the taking-things-for-granted dept

The Internet Archive is a 501(c)(3) non-profit that was founded to build an Internet library. Its purposes include offering permanent access for researchers, historians, scholars, people with disabilities, and the general public to historical collections that exist in digital format.

Founded in 1996 and located in San Francisco, the Archive has been receiving data donations from Alexa Internet and others. In late 1999, the organization started to grow to include more well-rounded collections. Now the Internet Archive includes: texts, audio, moving images, and software as well as archived web pages in our collections, and provides specialized services for adaptive reading and information access for the blind and other persons with disabilities.

The Internet Archive Wayback Machine contains almost 2 petabytes of data and is currently growing at a rate of 20 terabytes per month. This eclipses the amount of text contained in the world's largest libraries, including the Library of Congress.

The Internet Archive is the world's online memory, holding the only copies of many historic (and not-so-historic) Web pages that have long disappeared from the Web itself.

This morning at about 3:30 a.m. a fire started at the Internet Archive's San Francisco scanning center.

Good news:

no one was hurt and no data was lost. Our main building was not affected except for damage to one electrical run. This power issue caused us to lose power to some servers for a while.

Bad news:

Some physical materials were in the scanning center because they were being digitized, but most were in a separate locked room or in our physical archive and were not lost. Of those materials we did unfortunately lose, about half had already been digitized. We are working with our library partners now to assess.

That loss is unfortunate, but imagine if the fire had been in the main server room holding the Internet Archive's 2 petabytes of data. Wisely, the project has placed copies at other locations:

We have copies of the data in the Internet Archive in multiple locations, so even if our main building had been involved in the fire we still would not have lost the amazing content we have all worked so hard to collect.

That's good to know, but it seems rather foolish for the world to depend on the Internet Archive always being able to keep all its copies up to date, especially as the quantity of data that it stores continues to rise. This digital library is so important in historical and cultural terms: surely it's time to start mirroring the Internet Archive around the world in many locations, with direct and sustained support from multiple governments. They can also help provide the Internet Archive with a wider, more international range of content, to make an even more representative store of the world's digital activity.

from the need-pressure-from-somewhere dept

Amazon announced a ton of new ereader/tablet devices this morning, which is being covered to death on the various gadget blogs out there. While some of the devices look interesting (and could put some pricing pressure on other tablets), what caught my eye was the addition of a 4G LTE mobile data plan on the Kindle Fire HD. It's $49.99 for the year, though it's limited to just 250MB per month -- which is tiny. Amazon has included mobile data before in its Kindles, but those were strictly for books (which don't take up that much data). As they go further into the fully functional tablet world, this starts to become more interesting. That's because mobile data continues to be something of a racket, with just a few national providers: Verizon, AT&T, T-Mobile and Sprint (and there are limitations there). The pricing offered by those guys always seems to border on collusion (amazing how closely they track each other's pricing changes) and is always focused on keeping the prices very high.

Amazon's offer here is a way to tiptoe into that pool with something of an alternative. Yes, they're just piggybacking on someone else's network via some sort of MVNO (mobile virtual network operator) agreement, so you're still really using one of the national carriers' networks. But from a consumer standpoint, it is offering something of an alternative for mobile data, at much more reasonable prices (though, obviously, the super low caps match that super low pricing). That, alone, doesn't revolutionize mobile data pricing, but it does seem like a way for Amazon to get its foot in the door and expand over time. Amazon has a long history of figuring out ways to do things in a consumer-friendly manner, even if it means undercutting others to do so (which has made it a few enemies). In the presentation itself, Jeff Bezos noted that they're focused on making money elsewhere -- basically as people buy things via the device -- and thus the company has tremendous incentive to keep the prices of the devices and the service quite low. And that has the potential to be quite disruptive.

In some ways, I look at it as similar (in a very different context) to Google's fiber effort in Kansas City. In both cases, you have companies sort of dipping their toes in the water of ancillary markets that make their primary markets more valuable. They're very limited at this time, and many people may brush them off as being useless. But that's what always happens with The Innovator's Dilemma. Offer something simple and small, and the legacy players brush it off as too small or too limited to matter. But keep improving on that, and you undercut legacy providers without them fully realizing what's happening -- often because you're using your tiny and "weak" efforts there to actually enhance your primary market, where the traditional players have no presence.

Lots of people are reasonably mocking the 250MB limit. It is kinda useless. But, look at it as a wedge, and the beginning of the climb up the innovation slope, making Amazon's core business more valuable... and things could actually get quite interesting.

from the that-coat-is-brown dept

Back in September, we wrote about a situation at the University of Wisconsin-Stout, where campus police couldn't be bothered to actually read the text on a post put up by professor James Miller, which referenced a quote in the pilot episode of Firefly, with a picture of Nathan Fillion, the actor who played the character who spoke the line.

The quote was one about fairness, but the campus police interpreted it as a threat, took it down, and threatened the professor. In response, Miller put up a second poster, mocking the takedown of the first poster:

Once again, the university police got involved, taking down the poster and claiming that it "depicts violence and mentions violence and death." And saying that the "campus threat assessment team" had determined that the poster would "cause a material and/or substantial disruption of school activities and/or be constituted as a threat." That seems like an interesting (i.e., "wrong") interpretation of the First Amendment (remember, this is a state school), and the group FIRE (the Foundation for Individual Rights in Education) got involved, sending a letter on behalf of Miller. Amazingly, the University doubled down on this form of censorship, standing by the original takedowns.

We hadn't followed the story since then, but thanks to JJ for passing along that FIRE recently put up a video detailing the full story, with an appearance by Neil Gaiman, whose tweets about the story first alerted us (and, as it turns out, tons of others) to the story.

As he notes, you should never, ever upset science fiction fans who feel their favorite show has been cancelled in an untimely way.

Of course, as FIRE's director notes, this story ended up with the University backing down, but only because of the widespread outrage from Firefly fans. It's too bad that these kinds of issues often only get attention when they have a hook like that. Hopefully more people recognize that free speech issues are free speech issues even if they don't involve a particular TV show...

from the now-that's-fury dept

Okay, well, here's a silly story that I couldn't resist writing about because the title practically wrote itself. Over in China, apparently the angry wife of a mobile phone retailer who was upset that her husband was abandoning the marriage gathered up approximately 400 new phones that her husband was trying to sell and set them on fire on their bed (along with some kerosene to help flame the fire).

from the maybe-slow-down-on-the-installs? dept

We've had a few stories now about Verizon FiOS (its fiber optic broadband offering) installs that resulted in fires and damaged properties. While Verizon's PR folks have focused an awful lot of effort on convincing reporters that where there's smoke there isn't necessarily fire, perhaps the company should put a few more resources towards both preventing fires and fixing things up for those whose property was destroyed by install-related fires. Broadband Reports points us to yet another FiOS-related fire (which the reporter at Network World is now calling FiOS: Fire is Our Speciality), where Verizon promised to help the family impacted by paying for their living expenses and reimbursing them for destroyed property. The only problem? That bill came to $58,000, and Verizon only wants to pay $1,800 of it. The family has now decided to take the matter to court. You would think, given the negative publicity over the previous fires, that Verizon would know to pay up and apologize, rather than try to stiff the folks whose house they set on fire.

from the yes,-again dept

Last month, Verizon's PR folks went back and forth with a writer over whether or not one of their technicians actually started a fire at a customer's house when installing its FiOS service. The fire department says there was a fire, but Verizon denies that. In any case, the damage the installation caused was certainly significant, even if Verizon so generously paid for repairs. A month later, and look what's happened (again): a Verizon FiOS installer once again clipped an electrical wire, resulting in $2,650 worth of damage and a smoking house. Verizon's PR people are more than welcome to (again) argue about whether or not the smoke means there was fire, but regardless of their definition, these sorts of stories continue to pile up.